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Customs - Case Laws
Showing 181 to 200 of 204 Records
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2017 (11) TMI 258 - BOMBAY HIGH COURT
Revocation of CHA License - Jurisdiction - power of Commissioner of Customs (General), Mumbai to revoke license - order of revocation of license was earlier passed by the Commissioner of Customs (General), Mumbai was set aside by the Appellate Tribunal on 18th June, 2012 on the ground that the Commissioner of Customs, Mumbai lacks jurisdiction as the license was issued by the Commissioner of Customs, Pune - Whether the Appellate Tribunal ought to have given an opportunity to the Appellant to issue a fresh show cause notice to the Respondent - principles of Natural Justice.
Held that: - It is true that in the first show cause notice, violation of clauses (a), (d) and (e) of Regulation 13 was alleged. But when the said show cause notice was issued, the Enquiry Report was not available which is referred to in the second show cause notice which holds that the allegation of breach of clauses (a) and (d) of Regulation 13 has not been proved. Therefore, by no stretch of imagination, it can be held that the Appellant was put to notice that the Commissioner intended to disagree with the findings on the allegations recorded by the Enquiry Officer as far as clauses (a) and (d) of the Regulation 13 are concerned - the part of the impugned order which proceeds to set aside the order of revocation is legal and valid and no interference is called for.
The Appellate Tribunal ought to have granted an opportunity to the Commissioner of Customs to issue a fresh or supplementary show cause notice putting the Respondent to the notice that while deciding the first show cause notice, the Commissioner intends to disagree with the findings recorded by the Enquiry Officer.
Appeal allowed in part.
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2017 (11) TMI 252 - CESTAT CHENNAI
Smuggling - red sanders - penalty - Held that: - the department has not been able to adduce any evidence with regard to the direct or indirect involvement of the appellant - The goods exported by appellant, viz. Activated Carbon was loaded in the presence of officers and sealed and the seals were intact on the container as per report of authorities dt.31.7.2013. These being the facts, there is no evidence to establish,the involvement of the appellant in the attempt to smuggle Red Sanders.
Penalty unjustified - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 234 - CESTAT BANGALORE
Penalty - Exemption of SAD - N/N. 20/2006/Custom dated 01.03.2006 and N/N. 21/12/Custom dated 17.03.2012 - Held that: - the Bill of Entry in this case was filed on 31.03.2011 and the appellant was not aware of the withdrawal of the exemption at that time, and therefore I am of the opinion that there was no intention to evade as he has paid the duty along with interest - imposition of penalty is not warranted - appeal allowed.
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2017 (11) TMI 222 - CESTAT BANGALORE
Penalty u/s 112(a) of the CA, 1962 - case of appellant is that he was never a Director of the company nor was he involved in the company as an Officer-in-charge of the affairs of the company - Held that: - the Department has not been able to bring any evidence against the present appellant regarding the involvement of the appellant in the affairs of the company - as per Form No.32 filed with the Registrar of Companies, appellant was allegedly made Director on 14/08/1997 much after of the import of the goods.
In view of lack of evidence against the appellant, the impugned order imposing penalty of ₹ 1 lakh on the appellant is not sustainable - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 170 - CESTAT CHENNAI
Valuation - enhancement of declared values - Whether the import of impugned goods is a pre-condition / intrinsic part of the total importation of the main plant and machinery or whether the goods can be considered as having been imported for subsequent post-import activity? - Held that: - from the copy of the agreement available before us, it emerges that the agreement involves purchase of complete design, equipments, systems, technical services and training for Coke Oven plant and by-product plant project - the purchase of design is also part of the bucket list of purchase - sufficient evidence has been unearthed by the department to establish that declared / invoice values were much lower than the actual price adopted by the appellant to the foreign supplier - We are not able to find any infirmity in such enhancement of the declared values and the appellant's prayer on this count will also fail.
Classification of Engineering Design and Technical Documentation - Whether "Engineering Design and Technical Documentation" imported can be classified under Chapter 49 of CTH as claimed by the appellant or whether they are required to be classified along with the main plant and machinery and equipments imported for the project? - Held that: - We have then no doubt in our mind that the import of the Engineering Design and Technical Documentation are not for any post-import activity but are indispensible condition to the import of the main plant and equipment/machinery - once it has been established that the value of the Engineering, Design and Technical documents are required to be added to the assessable value of the related plant and machinery/equipment earlier imported, then each of such import will merit classification under Customs Tariff as that of the main import and we therefore are not able to find any infirmity in the change of classification ordered by the adjudicating authority.
Redemption fine - Held that: - The goods have been confiscated under Section 111 (m) of the Act which ordains that any goods which do not correspond to in respect of value or in any other particular with the entry made under the Act shall be liable for confiscation. When imported goods have been evidently found as not corresponding in respect of value, hence their confiscation under Section 111 (m) is ordinarily very permissible. There is also no bar for imposition of redemption fine under Section 125 if there is no duty liability has been determined - however, quantum of redemption fine reduced.
Penalties - Held that: - we find that they are commensurate with the acts and omissions alleged against the appellant in each of those cases and also keeping with the penal provisions they have been invoked in the SCN and found as correct by the adjudicating authority. This being so, we do not interfere with the imposition of penalties on the appellants or the quantum thereof.
Appeal allowed in part.
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2017 (11) TMI 169 - CESTAT KOLKATA
Smuggling - Gold Biscuits - main contention of the appellant is that the appellant purchased the gold legally from M/s Bhawana International under proper bills and paid VAT - authenticity of bills under dispute - Held that: - On perusal of the retail invoices, dated 12.04.2014 and 14.04.2014, I find that the goods were sold under the description of gold bars . They have paid output VAT of 1% on the selling price. The company s VAT TIN and PAN have been mentioned. The investigating officers had shown the photographs of the seized gold. There is no material available on record to show that the retail invoices placed by the appellant are false or fabricated. Apparently, the retail invoices are VAT paid and the VAT registration number and PAN were mentioned.
It is noted that the said officers had merely recorded the statement of the proprietor of M/s.Bhawana International and no attempt was made to confront the evidence namely retail invoices of M/s.Bhawana International produced by the appellant. Therefore, the purchase documents as produced by the appellants cannot be discarded on the basis of the statement, without any verification of the content of the retail invoices.
The appellant produced the retail invoices of M/s.Bhawana International and there is no material available on record that the said invoices are not genuine - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 168 - CESTAT BANGALORE
Penalty u/s 112(a) of the CA, 1962 on CHA - it was alleged that appellant had in fact abetted for the lower discharge of customs duty by indulging in such undervaluation by not including the freight in the assessable value - Held that: - though the liability and confiscation of the goods has been upheld, the fact remains that the importer has misstated and accepted that it was their mistake in directing the CHA not to include freight element and in order to achieve it, they had instructed for manipulating the shipping bills. Be that as it may, charge of abetment on the CHA could not be established, which is also more or less the findings of the first appellate authority - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 167 - CESTAT BANGALORE
Implementation of order - Refund claim - whether the second refund claim filed by the appellant on 03/09/2010 (formal) is hit by limitation or otherwise? - Held that: - the first refund claim was filed on 18/07/2007 which went into litigation and had to be decided by the first appellate authority on 23/12/2009 in favor of the appellant. As a consequence of such an order, Revenue authorities should have suo motu granted the refund if they have not filed an appeal against such order - the Board’s circular No.275/37/2K-CX. 8A dt. 02/01/2002 as amended by Board’s circular No.96/1/2017-CX.I dt. 10/03/2017 would apply in this case.
Division Bench of this Tribunal in the case of Lorenzo Bestonso Vs. CC(Imports), Nhava Seva [2014 (9) TMI 984 - CESTAT MUMBAI], on a similar situation has held that there being a consequential relief, it was incumbent upon the Revenue to refund the amount deposited during the investigation.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 166 - CESTAT BANGALORE
Benefit of N/N. 64/88 Cus. dated 01.03.1988 - import of CT Scanner (duty free import) - non-fulfillment of condition of Notification - burden to prove - Held that: - instead of contesting the factual finding recorded by the original authority regarding treatment of outpatients as well as inpatient in terms of the said notification, the appellant simply questioned the findings without any supporting evidences. It is necessary for the appellant to avail additional concession to establish that such condition has been duly fulfilled. It is not for the Revenue to establish that the appellant did not fulfill such conditions.
In the absence of any record to substantiate the fulfillment of the condition, the original authority is correct in arriving at the conclusion therein - appeal dismissed - decided against appellant.
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2017 (11) TMI 104 - MADRAS HIGH COURT
Inclusion of name of Mr.R.Nandanan as a 'G' card holder in the Customs Broker Licence of the petitioner - Jurisdiction restriction - Held that: - a person who is employed under a Customs Broker and who has passed the examination referred to sub-regulation 3 may, on his appointment under any other Customs Broker, with the approval of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, be exempted from passing of such examination - Thus, the rights of the petitioner are not fully foreclosed and even assuming that the identity card in Form-G issued to Mr.R.Nandanan on a earlier occasion while he was working in M/s. Green Channel is said to be an error, that cannot be a ground to deny the relief to the petitioner. Regulation 17(4) of the New Regulation, empowers the respondents to exempt the employee who has already passed such examination.
The writ petition is allowed by directing the respondents to consider the petitioner's application for issuance of identity card in Form-G dated 25.05.2015 and 12.10.2015 and consider the same by applying Regulation 17(4) and pass appropriate orders on merits - decided in favor of petitioner.
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2017 (11) TMI 103 - MADRAS HIGH COURT
Prayer for consideration of interim reply - authenticity of certificates of origin - The allegation is that the certificate has been obtained by mis-representation of facts - Held that: - This issue will be adjudicated by the authority viz., the respondent, after completion of the cross examination of the persons from whom the department has recorded statements under Section 108 of the Customs Act. Hence, for such purpose, the direction as sought by the petitioner cannot be granted and it is directed that the respondent shall adjudicate the cases based on the oral and documentary evidences that may be placed before it - respondent shall have to take note of the Customs Tariff Rules, 1995 and examine whether it is applicable to the facts and circumstances of the case - petition dismissed - matter on remand.
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2017 (11) TMI 102 - CESTAT BANGALORE
Absolute Confiscation of Foreign Currency and Indian Currency - Baggage Rules - case of appellant is that he is carrying the amount for medical treatment - Held that: - appellant requires this currency for the purpose of treatment on relying upon circular No.5/2002/09 dated 01.07.2008, issued by foreign currency department - RBI held that the appellant being resident individual, can utilize unspent foreign currencies under his possession. Mere non-declaration does not mean absolute confiscation. Coming to such a conclusion, he held that the currencies needs to be confiscated but to be released on payment of redemption fine.
Currency to be released on payment of Redemption fine - quantum of redemption fine and penalty reduced - appeal allowed in part.
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2017 (11) TMI 101 - CESTAT BANGALORE
Penalty on firm u/s 112(a) of CA, 1962 - penalty on partner u/s 1114AA of CA, 1962 - mis-declaration of goods - it was alleged that behind the consignment of slippers, undeclared quantity of ladies under-garments were concealed at the rear end, in excess of the declared goods - Held that: - the Partner of the Firm Shri Abdul Wahid has not filed any appeal before the Tribunal against the Order-in Appeal which upheld the penalties on him. Hence, the submissions in the written note as to both appeals should be considered as one appeal, is rejected as Shri Abdul Wahid had preferred an appeal before the first appellate authority independently and should have filed an appeal before the Tribunal also.
Quantum of redemption fine and penalty - Held that: - the said redemption fine is proportionate to the modus operandi adopted by the appellant in concealing the under-garments and not declaring the same - the penalty imposed on the said ladies under-garments is also proportionate and requires no interference on this point.
Confiscation of slippers - Held that: - the said goods are liable for confiscation is correct findings recorded and correctly held as confiscated - the ends of justice would be met if the redemption fine imposed on confiscation in respect of 66,000 pairs of slippers is reduced to ₹ 75,000/- and the penalty is reduced to ₹ 50,000/-.
Appeal allowed in part.
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2017 (11) TMI 53 - SUPREME COURT
Release of seized goods - imported goods, copper concentrate - hazardous waste or not - Held that: - the order of the Adjudicating Authority that the samples from the consignments dated 24.12.2001 and 24.01.2002 are hazardous waste and not Copper Concentrate is open to serious doubt, the benefit of which must go in favour of the importer in the light of the totality of the materials on record - appeal of Revenue dismissed.
The subject goods have been released subject to furnishing of Bank Guarantee of ₹ 10 lakhs on account of demurrage charges - as the respondent-importer had cleared/obtained release of the goods on furnishing of the Bank Guarantee of ₹ 10 lakhs in favour of the Central Warehousing Corporation in terms of the interim order of this Court dated 25.11.2016, we are of the view that the Corporation should be allowed to invoke the Bank Guarantee of ₹ 10 lakhs. Any further claim of the Corporation or any denial of any liability by the importer or the Customs Department, if raised, will be liable to be adjudicated in accordance with law.
Petition dismissed - decided against Revenue.
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2017 (11) TMI 52 - CALCUTTA HIGH COURT
Confiscation of imported vehicle - right hand drive Hummer H2 SUV - allegation in the show-cause notice was that the vehicle was converted from left hand drive to right hand drive and had changed hands before being imported into India and as such was not eligible for concessional duty - also, the cost of conversion from left hand drive to right hand drive had not been included in the assessable value of the vehicle and as such duty was short paid at the time of import - main grievance of the petitioner appears to be that he has lost the opportunity of approaching the Settlement Commission.
Held that: - where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of - In the case of Whirlpool Corporation-vs.-Registrar of Trade Marks, [1998 (10) TMI 510 - SUPREME COURT], the Apex Court observed that under Art. 226 of the Constitution of India, the High Court having regard to the facts of a case, has a discretion to entertain or not to entertain a writ petition. The High Court has imposed upon itself certain restrictions one of which is that if an efficacious alternative remedy is available, the High Court would not normally exercise its writ jurisdiction.
Principles of Natural Justice - Held that: - The customs law is a complete code by itself. The Customs Act and the Rules and bye-laws framed thereunder constitute a comprehensive and exhaustive code. The order passed by the respondent in this case is an appealable order. Sec. 128 provides for a statutory appeal - Mr. Khaitan argued that this statutory appeal is not an effective remedy since under Sec. 128A(3), the Commissioner (Appeals) cannot remand the matter back to the Adjudicating Officer. Even assuming the Commissioner does not have that power, in my opinion, the same does not make the statutory appeal a non-efficacious remedy. The petitioner had sufficient opportunity of contesting the adjudication proceeding on merits but it chose not to do so. The respondent granted two adjournments to the petitioner - By the notice dated 7 February, 2013 all the noticees including the petitioner were informed that no further adjournments would be allowed and if one failed to appear, the case would be decided as per the facts and evidence on record. I cannot hold that there was breach of the principles of natural justice.
If the petitioner takes recourse to the alternative remedy of statutory appeal, he would not be prejudiced in any manner. It is a comprehensive remedy and he can contest the order on merits and I propose to grant him that liberty. If the petitioner has lost the opportunity of contesting the adjudication proceeding on merits in the first round, it is only himself that he can blame.
Approach to Settlement commission which was rejected - Held that: - If the petitioner was serious about approaching the Settlement Commission, he ought to have been more diligent and he had sufficient time for filing a settlement application before the Settlement Commission. It appears that he took a chance of getting a favourable verdict before the respondent and now that the order has gone against him, he prays for an opportunity to approach the Settlement Commission.
Application dismissed - However, if the petitioner prefers an appeal from the impugned order within four weeks from date, the petitioner shall be entitled to the benefit of Sec. 14 of the Limitation Act and the Appellate Authority shall decide the appeal on merits without going into the question of limitation.
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2017 (11) TMI 51 - CESTAT BANGALORE
Penalty u/s 112(a) of the CA, 1962 - abetting smuggling - Held that: - the imposition of penalty on the appellant under the provisions of Section 112(a) of the Customs Act, 1962 is not sustainable in law, as the same has been passed without any clinching evidence against the appellant showing his involvement in abetment of clearance of imported parcels without payment of customs duty.
If when disciplinary proceedings under CCS (CCA) Rules, 1965 are dropped, then the imposition of penalty under Section 112(a) of the Customs Act, 1962 on the same charges and same evidence cannot survive.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 50 - CESTAT MUMBAI
100% EOU - diversion of duty free goods imported by it, into the local market - SCN was issued on 16.12.2004 making allegation of involvement of appellants in the aforesaid activities. They failed to defend on the allegations leading any cogent or credible evidence to the contrary. Therefore adjudication resulted in duty demand of ₹ 75,37,420/- for violation of condition of import. Penal consequence also arose in adjudication.
Held that: - Investigation result brought out the premeditated design of Pinkesh Jain in connivance with Rakesh Jain, Dinesh Chunilal Parmar and Mangilal Jain to defraud the Government. Appellant firm misused the exemption notification meant for EOU and defeated the requirement of export of finished product from India. Although appellant firm was required to use the imported duty free goods cleared by it, in its EOU for manufacture of finished product and export the same, it diverted such goods to the local market and caused serious prejudice to Revenue.
Penal provisions are enacted to suppress the evils of defrauding Revenue which is an anti-social activity adversely affecting the public revenue, earning of foreign exchange, economic and financial stability of the economy. Therefore such provisions are construed in a manner to suppress the mischief and to promote the object of the statute, preventing evasion, foiling artful circumvention thereof. Thus construed, the term fraud within the meaning of these penal provisions is wide enough to take into its fold any one or series of acts committed. Such act or acts when demonstrate to be reasonably proximate to the diversion of duty free imported goods fraudulently they should face adverse consequence of law.
In view of the cogent and credible evidence came to record proving malafides of appellants as discussed above, result of investigation brought out their hand in glove to cause subterfuge to Revenue as well as adjudication findings remained unchallenged by them leading any evidence to the contrary, appellants fails to succeed in their appeal having caused detriment to the interest of public revenue. They could not rule out their ill will. Pre-ponderance of probability came to the rescue of Revenue lending credence to its case.
Evidence gathered by Revenue provided reasonable basis for adjudication which could not be demolished by appellants by any means. They failed to lead any cogent evidence to rule out their role in commitment of the offence alleged when they failed to come out with clean hands, no immunity from penalty can be granted to them. Therefore irresistible conclusions that can be drawn is that Revenue having proved its case very successfully bringing out malafides of the appellants and their willful commitment of breach of law.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 49 - CESTAT NEW DELHI
High seas sale - import of Stressometer Flatness Measurement and MC 40 R Millmate Roll Force Measurement for Hitachi Mill - Original Authority rejected the High Sea Sale only on the ground that the agreement was dated and signed on 23/12/2011 on a stamp paper which was purchased on 29/12/2011 - Held that: - We are in agreement with the Original Authority that submission of such document before the Customs Authorities vitiates the claim of the importer. The plea that they have other supporting documents to establish High Sea Sale transaction becomes seriously jeopardized in the face of such untenable document filed before the authorities. Accordingly, we hold that the Original Authority has correctly rejecting such agreement.
Discount of 20% - Held that: - the sale value between these two companies of the same group cannot be accepted as transaction value for Customs duty unless the relationship is examined and non-influenced nature of such transaction is brought out by evidence. In the present case, admittedly the transaction is between these two related units of ABB and the Original Authority recorded that such special discount was not recognized in the SVB order and the importer also did not submit any explanation to justify such discount. We find no reason to interfere with such finding - discount correctly denied.
Penalties - Held that: - The bill of entry claimed High Sea Sale. The support for High Sea Sale is a document which was found to be mis-declared - confiscation and penalty upheld.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 48 - CESTAT HYDERABAD
Short payment of duty - Data Tapes - whether there is any short collection of duty arises as per the show cause notice? - Held that: - the importer has deliberately not disclosed the Data Tapes in the IGM and only after recording of the data in India, he had sought to clear them as imported goods and also obtained the Essentiality Certificate from the Directorate General of Hydrocarbons on the same pretext. During the period of its import, the pre-recorded Data Tapes were classifiable under CETH 8523 and the Recorded Data Tapes were classifiable under CETH 8524. Data Tapes cannot be considered as Stores in relation to the present consignment and also that the importer should have obtained the Essentiality Certificates if they intend to avail the duty exemption under Sl. No. 217 of CN. 21/2002 (as amended by CN. 26/2003) at the time of import of these goods into the country - impugned order upheld.
Whether the 155 boxes of Data Tapes on which seismic activity is recorded are liable for confiscation or otherwise? - Held that: - seismic data tapes unrecorded at the time of original import their classification was appropriate under 852390, hence in our view adjudicating authority classification of product cannot be faulted, holding the data tapes are required for seismic activity particular place, accordingly it is to be held on used in a vessel hence has to be considered as ship stores in terms of Section 2(38) of the Customs Act, 1962 - impugned order upheld.
Appeal dismissed - decided against Revenue.
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2017 (11) TMI 47 - CESTAT NEW DELHI
Misdeclaration of valuation description and quantity of imported goods - goods imported in the Semi Knock Down (SKD) conditions - Held that: - value of some of the items like parts of the calculators was not ascertained during the market enquiry. It appears that the market enquiry conducted by the Department has been questioned by the respondent as no chart of detailed process was supplied to the respondent.
Regarding the valuation of the imported goods, the Hon’ble Supreme Court in the case of Eicher Tractors Ltd. Vs. CC Mumbai [2000 (11) TMI 139 - SUPREME COURT OF INDIA] has held that It is only when the transaction value under Rule 4 is rejected, then under Rule 3(ii) the value shall be determined by proceeding sequentially through Rules 5 to 8 of the Rules. Conversely if the transaction value can be determined under Rule 4(1) and does not fall under any of the exceptions in Rule 4(2), there is no question of determining the value under the subsequent Rules.
The goods were in the SKD conditions for which proper entry or enquiry was neither possible nor made - impugned order sustained - appeal dismissed - decided against Revenue.
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